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Rogowskyj v. Conway

March 13, 2007

JOHN A. ROGOWSKYJ, JR., PETITIONER,
v.
GENERAL JAMES T. CONWAY,*FN1 COMMANDANT OF THE MARINE CORPS, RESPONDENT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Petitioner John A. Rogowskyj, Jr., is a serviceman who was denied discharge from the Marine Corps as a conscientious objector. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons explained herein, Rogowskyj's petition will be denied.

BACKGROUND

In 2002, Rogowskyj voluntarily enlisted in the Marine Corps Reserve for a term of eight years. (See AR 39--40.) At the time, he stated that he was not, and never had been, a conscientious objector. (See id. at 38.) In February 2006, however, he applied for discharge from the Marine Corps contending that, since the time of his enlistment, he had developed a religious opposition to war in all forms. (See id. at 23--30.)

According to Rogowskyj's application, his opposition to war crystallized in the fall of 2005 when, while reading a book related to vegetarianism, he encountered the notion that "compassion toward animals is an obligation of humans," which led him to realize that humans owe an equivalent duty to other humans. (Id. at25.) This realization in turn led him to believe that "it does not matter how much violence threatens us we should not respond in kind," and that "violence as a means or end cannot be tolerated." (Id.) In his application, Rogowskyj further stated: "I see no place for myself in further assisting any operation, the goal or means of which include[s] killing or harming another human being." (Id. at 24.)

Rogowskyj's application underwent the military's standard review process, beginning with interviews by a chaplain and two psychiatrists. Without making specific recommendations as to whether Rogowskyj should be discharged, these interviewers found that he was sincere in his asserted beliefs. (See id. at 31, 32.) In addition, the psychiatrists found that he exhibited "[a]voidant personality traits," and the chaplain found that he was "very confused theologically." (Id.)

After his preliminary interviews with the chaplain and psychiatrists, Rogowskyj had a three-hour hearing before an appointed investigative officer, Captain Christian T. Devine. (See id. at 17, 18.) Based on Rogowskyj's testimony at the hearing and Rogowskyj's application package as a whole, Devine concluded that Rogowskyj is a conscientious objector. (Id. at 21.) Specifically, Devine found that "[Rogowskyj's] testimony overall seemed sincere, thorough, and well-formulated." (Id. at 20.) He recommended that Rogowskyj's request for discharge be approved. (Id. at 21.)

Devine's recommendation, together with the rest of Rogowskyj's application package, was then forwarded to Rogowskyj's company commander, Major M.A. Stolzenburg. Stolzenburg "concur[red] with the investigation finding that Lance Corporal Rogowskyj is a conscientious objector by reason of the development of his spiritual beliefs." (Id. at 16.) However, Stolzenburg disagreed that Rogowskyj should be discharged, stating: "It is my intent that [Rogowskyj] serve the company in the capacity of Supply Clerk, a non-combatant billet. He has acknowledged to me that he would be able to perform this duty without contravening his belief system." (Id.) Accordingly, Stolzenburg recommended disapproval of Rogowskyj's application. (Id.)

Rogowskyj's application package was next reviewed by his battalion commander, Lieutenant Colonel W.S. Nagle. Nagle found that "Rogo[w]skyj's general demeanor and pattern of conduct [was] consistent with his asserted beliefs," and that Rogowskyj's "beliefs seem[ed] thorough." (Id. at 14.) "In the net," however, Nagle considered Rogowskyj's case "unconvincing." (Id. at 13.) For one, Nagle found that, aside from Rogowskyj's application itself, the "most tangible evidence of the outcomes of his belief [were] that he now volunteers at a homeless shelter, has become a vegetarian, and intends to lobby for an expansion of conscientious objector rights." (Id.) Although such acts were "significant and charitable . . . , they [did] not clearly demonstrate that [Rogowskyj's] belief is the primary controlling force in his life," as required by MCO 1306.16E ¶ 5.c(1). (Id.) Additionally, Nagle found that Rogowskyj's statements regarding "non-traditional religious / moral / philosophical discovery" were "not convincing that his activity was comparable in rigor and dedication to the processes by which traditional religious convictions are formulated," as required by MCO 1306.16E ¶ 5.c(2)(b). (Id. at 13--14.) Accordingly, while recognizing that Rogowskyj's application was "consistent and sincere," Nagle recommended disapproval. (Id. at 14.) The last of Rogowskyj's commanders to review his application package, Major General D.V. Odell, Jr., agreed with Nagle's recommendation. (See id. at 12.)

After reviewing the findings and recommendations of his reviewers, Rogowskyj submitted a rebuttal and an additional letter of support. (See id. at 5--11.) In response to Stolzenburg's statement that Rogowskyj had acknowledged that he could perform the noncombatant duties of a supply clerk, Rogowskyj explained: "In point of fact, it did not occur to me at the time that supply is responsible for providing ammunition, which directly contributes to violence. I cannot be blind to the fact that they will use this ammunition, not just to support their missions as a whole, which my presence in the Marine Corps does, but also to intimidate, escalate and kill others in confrontations." (Id. at 5.) Regarding Nagle's finding that Rogowskyj lacked tangible evidence of his faith, Rogowskyj stated: "In my daily life, the revelation I have had about violence has had little discernible impact, because violence is not a part of my everyday life, except insofar as I am supporting troops preparing for combat, in this moment." (Id. at 6.)

Rogowskyj's rebuttal and the rest of his application package were then forwarded to Marine Corps headquarters, where the Conscientious Objector Status Screening Board ("Board") convened to review Rogowskyj's case. (E.g., id. at 1.)

The board voted unanimously that Lance Corporal Rogowskyj failed to provide convincing evidence that his claims of objection to war in any form were sincere and deeply held and that they were the primary controlling force in his life. Further, the timing of his request, coming after notification of his unit's combat mobilization, caused the board to believe that he was seeking conscientious objector status solely to avoid a combat deployment to Iraq. (Id. at 2.) On October 6, 2006, the Board (on behalf of the commandant) formally disapproved Rogowskyj's application. (See id. at 4.)

ANALYSIS

I. Standard of ...


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